May 11, 2018

Texas Supreme Court Opinions and Orders — 5/11/18

This morning, the Supreme Court of Texas issued opinions in four argued cases. The Court issued an opinion in a case from the December sitting, two opinions from its late February/early March sitting (the first opinions from that set of cases), and one case that was argued at the last argument sitting of this term. There are now 27 argued cases left to be decided. The Court did not grant any new petitions for review. Access the complete order list here.

No. 16-0098, The Dallas Morning News, Inc. v. Tatum — In this defamation suit against the Dallas Morning News and one of its columnists, the Supreme Court unanimously held that the defendants are entitled to summary judgment that the plaintiffs take nothing. But the path to that result is complicated. The Tatums claimed that they were defamed in a column by Steve Blow printed in the Morning News. In an effort to raise suicide-prevention awareness, Blow's column suggested that the obituaries of suicide victims should disclose the fact of suicide. The column (without mentioning the Tatums by name) discussed the fact that the obituary for their son did not mention that he died from suicide. The trial court granted summary judgment for defendants. The court of appeals reversed. The Supreme Court unanimously reversed the court of appeals and rendered judgment that the plaintiffs take nothing. But the differing rationales for that result complicate the analysis. Justice Brown authored the main opinion, which is a unanimous opinion in part, a five-justice majority as to the largest section (Justice Brown joined by Chief Justice Hecht and Justices Green, Guzman, and Devine), and a three-justice plurality as to another section (Justice Brown joined by Chief Justice Hecht and Justice Johnson). Justice Boyd issued a concurring opinion (joined by Justices Lehrmann and Blacklock). Part III.A. of the main opinion (which commands the five-justice majority) finds that the column was capable of a defamatory meaning. That portion of the opinion attempts to sythesize, summarize, and clarify the structure of defamation law. The opinion substitutes the term "textual defamation" for "defamation per se" to identify statements that are defamatory without reference to an extrinsic evidence and substitutes the term "extrinsic defamation" for "defamation per quod" to identify statements that do require resorting to extrinsic evidence to determine that they are defamatory. Part III.A also addresses how defamation by implication should be analyzed and a plaintiff's burden to plead and prove defamation by implication. Justices Boyd, Lehrmann, and Blacklock do not join Part III.A. They agree that the column was capable of a defamatory meaning, but conclude that the majority's effort “to advance the law by introducing new terminology and addressing concepts unnecessary to this decision only makes things worse.” Part III.B. of the main opinion (which is joined by all of the justices) concludes that the statements in the column are not actionable because they are statements of opinion. And in Part III.C. (which was joined only by Chief Justice Hecht and Justice Johnson), Justice Brown also finds that the statements are not actionable because they are true. Interestingly, Justice Johnson does not join either Part III.A of the majority opinion or the concurrence. So, although he finds that the statements are not actionable because they were opinions and because the statements were true, Justice Johnson does not join any part of any opinion addressing whether the statements were capable of a defamatory meaning.

No. 17-0063, Jody James Farms, JV v. The Altman Group, Inc. — Petitioner Jody James Farms purchased a crop insurance policy through respondent The Altman Group, an independent insurance agency. The policy was with Rain & Hail, LLC and contained an arbitration clause. Based on the definitions in the policy, the arbitration clause does not name The Altman Group, and the Altman Group did not sign the agreement. Jody James Farms made a claim under the policy, but the insurer denied the claim because it was not timely. After losing its arbitration claim against Rain & Hail, Jody James Farms sued The Altman Group, claiming that although Jody James Farms had promptly called an Altman Group agent to make a claim, The Altman Group improperly failed to notify Rain & Hail. The Altman Group invoked the arbitration agreement in the insurance contract, and, over Jody James Farms's objection, the trial court compelled arbitration. Following the arbitration, Jody James Farms opposed confirmation of the award on the basis that it had not agreed to arbitrate disputes with The Altman Group. In a unanimous opinion by Justice Guzman (Justice Johnson did not participate in the decision), the Court addressed two issues: (1) whether the issue of arbitrability should be decided by the courts or by the arbitrator; and (2) whether Jody James Farms could be compelled to arbitrate its claim against The Altman Group. The Court first held that “even when the party resisting arbitration is a signatory to an arbitration agreement, questions related to the existence of an arbitration agreement with a non-signatory are for the court, not the arbitrator.” This determination was significant because the Court then reviewed the arbitrability issue de novo, rather than on a more deferential standard afforded to decisions by arbitrators.The Court noted that an agreement that is silent about arbitration with non-signatories cannot unmistakably mandate arbitration with non-signatories. The Court also rejected The Altman Agency's argument that the signatories expressly incorporated AAA rules that provide that the arbitrator will resolve disputes about arbitrability. The Court held that this provision applied only to disputes between the signatories. The Court then analyzed the six situations in which arbitration with non-signatories may be required, and found that The Altman Group was not entitled to compel arbitration.

No. 17-0323, State of Texas v. T.S.N. — This appeal arises from a request to expunge criminal records (which is a civil proceeding). Respondent T.S.N. was arrested for two unrelated charges, pleaded guilty for one, and was tried and acquitted on the other. She then sought expungement of the records relating to the charge on which she was acquitted. The State opposed the expungement request because T.S.N. was not acquitted of the other charge for which she was arrested. The relevant statute, Texas Penal Code section 55.01, allows expungement when the person is acquitted of the charge. There is an exception that does not allow expungement if the person is arrested for two related offenses and is convicted on one and acquitted on the other. But nothing in the statute addresses the proper procedure when there is a single arrest on multiple unrelated offenses. In a unanimous opinion by Justice Johnson, the Supreme Court held that expungement was proper for the records associated with the unrelated offense on which T.S.N. was acquitted. The Court recognized that this may pose some administrative difficulties for law enforcement, but held that the statute required this result. The discussion of statutory construction in the opinion may be useful and applicable in other statutory and contract construction cases.

No. 17-0329, Harris County, Texas v. Annab — Kenneth Caplan, a Harris County deputy constable, shot Lori Annab with his personal firearm from his personal vehicle while he was off duty. Annab sued Harris County, attempting to invoke waiver of governmental immunity in the Texas Tort Claims Act by claiming that Harris County “used tangible personal property” when Caplan shot her. The trial court granted the County’s plea to the jurisdiction and dismissed the case. The court of appeals held that Annab had not established a waiver of governmental immunity but remanded to allow Annab to replead and conduct discovery. In a unanimous opinion by Justice Blacklock, the Supreme Court held that, as a matter of law, Annab could not establish waiver of governmental immunity. First, the Court reaffirmed that for the government to “use” tangible personal property, the government must do more than make the tangible personal property available for use by another. Second, noting that Caplan’s troubled employment history may have some relevance to a claim against a private employer, the Court rejected Annab’s argument that the County’s failure to take action based on information it knew or should have known about Caplan amount to the “use of tangible personal property.” Third, the Court held that there was no factual basis for the notion that the County made the firearm available to Caplan because the County does not issue firearms to deputy constables, Caplan owned the firearm prior to his employment, and Caplan shot Annab while he was off duty. Finally, the Court held that Annab had sufficient opportunity to develop the record and no amount of future discovery or rephrasing of allegations could invoke the Tort Claims Act’s limited waiver of immunity. Therefore, the Court reversed the portion of the court of appeals' judgment remanding the case for further proceedings and instead rendered judgment that Annab take nothing.